tv [untitled] July 12, 2012 11:00pm-11:30pm PDT
assistant patrol special officer, clearly not a peace officer, as defined by the rules and penal code, but he tries to give the impression to others that he is a peace officer. when looking at this case, it is important to look at the documents mr. handy had in his possession, the business card and the fact that he signed the adrs form under penalty of perjury, attesting that he was a peace officer, as well as the firearms application the year before. i think when the commission reviews all the evidence, as well as our closing argument, there is more than sufficient evidence to find him guilty of violating all four specifications. thank you.
>> i am going to ask a number of things. to the extent that any commissioners have disposition relative to the patrol specialist program, that is not on trial here, and you need to set that aside. the zeal with which the department has dealt with this case and other cases involving the patrol specialists, if there are issues about the patrol specialists, if there are problems perceived -- i am going to ask the commission to not participate in picking off the patrol specialists individually, one at a time, as a side door way to deal with any perceived issues relative to the control specialists. your role today is to examine
the evidence adduced at the hearing, to see whether the specifications are upheld. something ms. of wartime -- warshime is trying to get you to do -- he is allowed to wear a uniform. in both transactions that were the subject of the hearing, the first transaction at pacifica, and a second at security 6 -- both of those times, the individuals involved stated that the specialist did not identify himself as a peace officer. the barometer of the specifications is did he identify himself as a peace officer for the purchases appear on off licensed weapon?
we make assumptions. we thought patrol specialists were a swat units. but this was a vacation is did he identify himself -- but the specification is, did he identified himself as a peace officer? he did not. i believe that is perhaps the most important piece of evidence, relative to specifications involving that. the second specification has to do with carrying a concealed weapon. the individual who testified what he saw said, i know what a concealed weapon is. i did not call the police. i did not think at the time he was carrying a concealed weapon. i think that is dispositive of that issue. the specification four talks
about him being in uniform and out of the city. i am not quite sure what the specification is, whether he is on or off duty. there is no prohibition on leaving the city in uniform. the way a patrol special puts himself or herself on duty is by checking in with the police station in which there beat was. there is no evidence special officer tachihara build to put himself on duty. the only evidence is testimony that he checked in, he was on duty, he was in uniform, and went to deal with duty-related issues, meaning either servicing his service weapon or going to purchase one. i do believe that the issue is not do other people misunderstand what a patrol specialist is, and did mr. taught tara -- mr. tachihara
take advantage. the question is whether he identified himself as the peace officer. the last thing i'm want to talk about. tachihara testified he did not go to hayward to try to post an off list weapon. he had a conversation with mr. handy, who testified that he said, "i thought you could have this weapon. let us fill out the paperwork." all the evidence suggests mr. tachihara used current identification to do this work. it was falsely testified that he took an ibm and copy both sides. if you look at it, it is not true. the expert witness said it is not true. you cannot sustain an allegation based on his testimony if it is not true.
>> do you still have time reserved? >> i think i have about a minute left. >> do you want to use it? do you want to ask any questions? >> i think it is important to remember this is a businessman of 24 years. he said he would never put his business license and business at risk for the sale of one firearm, of which he makes little profit off of that. i think it is important to remember the business card, the application signed under penalty of perjury. the assistant control special officer had so many opportunities to correct mr. handy and explain he was not a patrol -- not a police officer in tired to -- entitled to
purchase the firearm. he was told why city arms could not sell him the firearms. instead of accepting that as true, or coming to someone in the apartment and speaking about why the purchase had been denied, he travelled further away from san francisco, knowing very well that people who live outside of this county are unfamiliar with the patrol special program. i think he attempted to take advantage, and i do not think he gets to sit by and i believe play these games about stretching the truth about what his role is. there should be some requirement on him that he be honest and truthful with the public in business dealings, so people are not misled about his true profession. thank you. >> are there any questions? >> i have one question.
>> just from the police department perspective, is it enough if we find -- he is not the defendant in this case. he is the accused. what is the term? if the accused put himself out as a police officer, is there a distinction in whether he represented himself in any behaviors, carrying his gun a certain way, having a conversation, trying to buy a firearm, knowing he was not entitled to buy a firearm? how relevant is it to the point that some folks said, which is that many officers do not do this. how relevant is that? >> i think it is very relevant, just in how the special officer
approaches his whole role as an assistant patrol special officer. the department truly believes that he thinks he is a peace officer. because he thinks he is a police officer, he works in a certain way that allows others to believe he is a police officer. if you do with law enforcement officers on a daily basis, people coming in to purchase firearms -- when the special officer came in with the firearm on his side, they believed he was a peace officer. i think one of the things he testified about that is important was when lt. parra came and explained to them what special patrol officers were and were not, that when they finally looked at his id, and recognize that he was not a peace
officer, the officer continued to protest with them. he pulled out his retired u.s. marshal badge. he tells them the department is incorrect. this conversation went back and forth for approximately 15 minutes, and he left upset. the special officer could have come to the department and spoken to the lieutenant. he did not do that. instead, he went out of county and put another business in jeopardy. i believe that what he does is playing in this gray area. as long as they do not ask me questions about what i do, there is no onus on me to tell you. there is no affirmative action on my part to say to you that i am not a peace officer. you either have to ask the right questions of me, or you have to determine that on your own by some independent investigation. i think that is disingenuous.
i think his conduct, his mannerisms, the way he carries himself, the things he does -- that can definitely be considered implied conduct on his part. >> thank you. >> may i? >> sure. >> the problem is the specification is that he affirmatively represents himself as a peace officer, not that he failed to dissuade other individuals who may have assumptions about him that they may or may not state. he testified he was completely -- an interesting thing. lt. parra went out of his way to go to a gun shop and say, by the way, none of our gun shops -- none of our patrol specialists can use this weapon. we do not know whether patrol specialists are trained in what they can or cannot do. >> is it your position that any
patrol specialist can go into any gun shop, knowing or not knowing that they can all by this? -- buy this? and if you have a good gun dealer, you are in trouble? >> we are dealing with the specification that is here. the evidence is, and there is really no reason to dispute this -- he had no idea there was a problem. there was then a conversation with mr. handy, who said, "i disagree with city arms." >> but he specified that he does not understand the difference with patrol specialists. >> he fills up the application. he will run it past the
department of justice. you can have the weapon. that is what he did, and that is what happened. >> i guess it is you, commissioner turman. >> is in here somewhere. i think it is defendant exhibit 1, but maybe check with the commander. >> what exhibit number is this? >> dealer record of sale of firearms? >> we have more than one in evidence. there is an assistant patrol exhibit. the one you have in your hand here, which i was just handed,
his department exhibit ernest tachihara -- department exhibit e. >> there was one in 2009 that had to do with a completely different purchase, that had nothing to do with an off list record, that was in the files of the store. when he made the purchase, he was mistaken about his status, but that is not the purchase involved here. there was another signed by mr. tachihara in the transaction. both parties agreed that mr. hanby filled out the form. it is not to the credit of my client that he signed the paperwork without examining it. >> i prefer to ask the question before you answer.
that information is helpful. you have helped me distinguish. this one from 2009, which has no exemptions, it is not what we are talking about. i have seen your client before. i have certainly observed him. he is asian. he has black hair. he is about 5 foot 7 inches. i would say 170 pounds. i do not think there is any dispute that this is his signature. i also do not think there is a dispute he signed a document under penalty of perjury. i think, reading that, he has an affirmative duty to state when something on here is incorrect. it says here the exemption type
is peace officer. and i do not hear from you that he took the step to say, "i am not entitled to that exemption." is that correct? >> that is correct. >> i have a question. if you can help me with the timeframe, there was another matter -- there were not even allegations. can i do that? >> we are just now considering the allegations in the new case. depending on the board decision on the allegation in this case,
when you get to the penalty phase, if you do find the special patrol officer is guilty of any of the new charges, when you determine penalty, you may take into consideration past findings of violations by assistant patrol specialist tachihara. >> thank you. >> hobart does not apply here. but other due process provisions apply, and commission rules apply. under those protocols, you will first decide the merits of the charges, and then, when you decide the penalty, that will be a second part of the evening proceedings, if he is found in violation of any of these specifications. you do have a penalty brief from
the party's -- parties that referenced the past discipline. >> in terms of time frame, can i even ask -- >> not while we are considering the merits of the current charges. >> i think what you might be suggesting is that he might have a bias going through the second -- going to the proceedings, that can reflect on his credibility. i think he is looking chronologically to make an assessment which would be relevant to the guilt, in this case. >> i will not even ask the question. >> you have an a ministry to record in front of you. if you want to reopen the adventure rehearing and take
additional evidence -- i am not sure which direction this is going. you can't send it back to the commissioner dejesus. other than that, we are here for your consideration of that administrative record that you have before you -- the transcripts, the exhibits, the arguments of counsel. that is what you have in front of you to decide the merits of the case. if you find he is guilty of any of the specifications, you would move on to penalty. when you get to penalty, you could then determine any past discipline and the timing of that discipline, and the timing of the prior charges in relation to the current charges. >> when it comes down to credibility, we do have a penalty phase.
it is in front of us, the hearing before us. is that not part of it? >> credibility is always an issue. i do not recall that aspect of credibility coming upper in the transcript. i was not there at your hearing. i did read your transcript and look at the exhibits. if you wish to explore that, you would need to reopen the evidence rehearing to do it. >> but we say the first of my -- did someone learn from previous behavior? if it happened previously, that is all i want to know. >> that does not seem to be before you at the moment. >> i frankly disagree. it is in the brief, so it is part of the record. >> are there any other
commissioners? >> i am sorry. commissioner kingsley. >> this is not a question, but i request that i be recused from this case. i apologize to patrol special officer tachihara, the counselors, and the commissioners. there were documents about this case in a packet with other cases, and i did not realize the documents were there. i did not read them. it would be unfair for me to participate in making a decision tonight. i request to be recused. >> i understand commissioner kingsley is not going to participate, because she has not read the transcript. >> not all of it. not all of the documents.
>> you might want to step down until the case is completed. >> do we have to ask if we have all read it or not? we might want to say that we have all read -- >> you might want to confirm that for the record. >> ask each of us if we have read the material. >> what you were provided by your secretary, as i understand it, or the volumes of transcripts for april 30 and may 21 of this year. you were provided department exhibits a through m. and assistant patrol special officer exhibits 1, 2, and 4, exhibit 3 having been withdrawn during the hearing. your also provided a copy of the charges, the written and closing
arguments from the department, a written penalty statement from the department, a post tiering brief, and a post hearing brief on penalty. those are the documents that were in the package provided by the commission secretary, if he wants to go ahead and take your statements now as to whether the remainder of you have read and considered all of those documents. >> i can clearly say that i have read the documents. but i do with hold on reading the penalty statements, because i did not want them to influence me before i decided on the merits. i figured we could take a break before we get to that. >> that is fine. >> i have read everything. >> i have read everything. >> yes, i have read everything. >> yes, i have read everything, i guess. >> and we still have a quorum
for consideration of this case. >> all right. is there any other questions? thank you, counsel. i believe we have to discuss the case. i do not know if you want to handle specification, spot -- specification 1, 2, 3, or four bang? >> maybe we can move into the specifications. >> your overall impression. >> i would really rather not. i was hoping to hear from you, and then i would go forward. i was thinking about how i would characterize it. >> there is conflicting testimony, especially between patrol specialist tachihara and
some of the store owners and employees. >> i did the hearing. i have to say, to the id, i looked at the id. i think a bag was placed on top of it when it was copied. i did not see it as being an issue. i thought the gun dealers were on it. i thought they did believe that was the id they copied. there is some discrepancy in the way it copied, but i do not think it is not the id. i thought the gun dealers were credible. it was to they could not say that mr. tachihara said he was a police officer, but when i first came here, i saw the uniform, and it looks like a san francisco police officer uniform. i do believe there were credible and honest. i believe they thought he was a
police officer. i also agree with what commissioner term and said. -- commissioner turman said. if it is unclear, you have a duty. it comes down to signing a document under penalty of perjury, say you are a peace officer. i believe mr. tachihara did not check the box, it is something you are credited under penalty of perjury. the review it before you sign it. i wonder whether you take advantage of -- i am struggling with it.
>> i have to tell you that i agree with mr. tachihara's council, as far as the uniform goes. maybe outside the city, people did not know. i do not know if that, in and of itself, it is an act of misleading. i am not in favor of finding a violation of specification four. i am not sure exactly where i stand on specification two. , but on one and three, from the weight of the evidence, it leans strongly in favor finding for the staff and apartment. i believe mr. tachihara is
guilty of specifications one and three. i am interested in what others think on specification two. >> i agree that it seems like there is enough evidence to meet the standard, specifically because, in the dealer record of sale, a peace officer is at the top of the page. it is hard to miss, even if it is a long document. it does not seem like that, taken together with the other things patrol specialist tachihara did, he is misleading the gun dealers to think he is a police officer. the fact that he is doing this further and further out said the city, a month apart -- he has already ignited the first time. he does it again a few weeks
later. he is purposefully not identifying himself in order to get an off-list record. i wanted to hear more about the hearing itself, and testimony how it came across. i read the relevant portions of the transcript over and over again, to figure it out. sometimes, he does not recall. other times, he says, "i did see tachihara across the room in civilian clothes, with the gun exposed." it was a low and clear to me. specification four, there is a question of whether wearing his uniform and equipment to get the guns is a violation of department rules. it looks like it falls on whether or not he was on duty, and it is unclear.